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Garcia v. Family Dollar Stores of Colorado, Inc.

United States District Court, D. Colorado

August 16, 2017

JOHN F. GARCIA, by and through his guardian Phyllis Garcia, LISA PACHECO, Plaintiffs,
v.
FAMILY DOLLAR STORES OF COLORADO, INC., FAMILY DOLLAR STORES, INC., DOLLAR TREE, INC., Defendants.

          ORDER

          RAYMOND P MOORE UNITED STATES DISTRICT JUDGE.

         Pending before the Court is the Report and Recommendation (“R&R”) from U.S. Magistrate Judge Kristen L. Mix, recommending that defendants', Family Dollar Stores of Colorado, Inc., Family Dollar Stores, Inc., and Dollar Tree, Inc. (collectively, “defendants”), Partial Motion to Dismiss and Motion to Dismiss (“the motion to dismiss”) be granted, and Claims One and Two of the Complaint be dismissed without prejudice for lack of standing and Claim Three be dismissed without prejudice for lack of supplemental jurisdiction. (ECF No. 43.) The Magistrate Judge advised the parties that they had 14 days in which to file specific, written objections to the R&R in order to preserve issues for de novo review. (Id. at 15.) On the fourteenth day, plaintiffs John F. Garcia (“Garcia”), by and through his guardian Phyllis Garcia, and Lisa Pacheco (“Pacheco, ” and, with Garcia, “plaintiffs”) filed the only objections to the R&R. (ECF No. 47.) Defendants then filed a response. (ECF No. 49.)

         I. Review of a Magistrate Judge's Report and Recommendation

         A district court may refer pending motions to a magistrate judge for entry of a report and recommendation. 28 U.S.C. §636(b)(1)(B); Fed.R.Civ.P. 72(b). The court is free to accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate judge. 28 U.S.C. §636(b)(1); Fed.R.Civ.P. 72(b)(3). A party is entitled to a de novo review of those portions of the report and recommendation to which specific objection is made. See Fed.R.Civ.P. 72(b)(2), (3). “[O]bjections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 E. 30 St., 73 F.3d 1057, 1060 (10th Cir. 1996); see also See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of timely objection, the district court may review a magistrate's report under any standard it deems appropriate.”). Furthermore, arguments not raised before the magistrate judge need not be considered by this Court. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).

         II. The Magistrate Judge's Findings and Defendant's Objections

         The Magistrate Judge, first, found that Garcia lacked standing to pursue injunctive relief through Claim One of the Complaint. (ECF No. 43 at 8-9.) The Magistrate Judge found that, because plaintiffs alleged that Garcia refused to return to a Family Dollar store, it was clear he had no concrete, present plan to return to any such store. (Id.) The Magistrate Judge next found that Pacheco lacked standing to pursue injunctive relief through Claim Two of the Complaint. (Id. at 9-12.) The Magistrate Judge found that plaintiffs failed to allege any Family Dollar stores Pacheco might visit, when she might do so, or whether any other stores had access problems like the problem encountered in one store. (Id. at 11-12.) Finally, the Magistrate Judge recommended declining to exercise supplemental jurisdiction over Claim Three, as it is a state law claim and dismissal had been recommended as to all federal claims. (Id. at 12-14.)

         Plaintiffs object to the Magistrate Judge's findings that they lack standing to pursue their federal claims for injunctive relief. (ECF No. 47 at 7-16.) Defendant asserts that the Magistrate Judge failed to address their “main theory for standing, ” which is that they have been deterred from returning to Family Dollar stores. (Id. at 8-16.) Plaintiffs also argue that this Court should accept jurisdiction over their state law claim because they intend to amend their Complaint so that jurisdiction for that claim is premised upon diversity. (Id. at 17-18.)[1]

         In light of the arguments plaintiffs raise with respect to the standing issue, the Court will review whether they have standing to pursue Claims One and Two of the Complaint de novo.

         III. Discussion

         Plaintiffs “main” argument with respect to standing is that the actions of certain employees at a Family Dollar store in Pueblo, Colorado have deterred them from returning to the same store or any other Family Dollar stores. Although the Magistrate Judge found that plaintiffs failed to show standing due to a failure to show that they had a concrete, present plan to return to any Family Dollar store, the Court finds a different critical flaw in plaintiffs' argument.[2]

         In presenting their argument, plaintiffs cite a number of Circuit cases where they assert courts have adopted a deterrence theory for standing. (ECF No. 47 at 10.) Although, as plaintiffs concede, not one of those cases is from the Tenth Circuit Court of Appeals (see id. at 11), at this juncture, the Court is willing to accept that a deterrence theory may be accepted by the Tenth Circuit. What then is this theory? Plaintiffs cite a Ninth Circuit Court of Appeals case for the basic principles: “So long as discriminatory conditions continue, and so long as a plaintiff is aware of them and remains deterred, the injury under the ADA continues.” (Id. at 10 (citing Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133 (9th Cir. 2002)).

         The critical flaw in plaintiffs' argument is that the Complaint fails to plausibly allege that discriminatory conditions are continuing at any Family Dollar stores. The closest the Complaint gets to even addressing this issue is the following paragraph:

Based on Defendants' collective management and operation, and the callous refusal by Defendants' corporate office to address Plaintiffs' complaints, Plaintiffs believe that the discrimination they endured at Family Dollar is not a one-time event. They fear that if they attempt to enter any of Defendants' stores, and particularly the Family Dollar store located at 1151-A South Prairie Avenue in South Pueblo, ...

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